Justices deny transfer to malpractice suit against Barnes & Thornburg

June 19, 2017

The Indiana Supreme Court will not consider the issue of whether Indiana’s largest law firm was properly granted summary judgment in a legal malpractice suit, denying transfer to a case that raised concerns about attorneys’ ability to indemnify themselves against malpractice allegations.

The high court denied transfer last week to the case of Central Indiana Podiatry, P.C., Northwest Surgery Center, LLC, d/b/a Foot & Ankle Surgery Center, f/k/a Foot & Ankle Surgery Center, LLC and Anthony E. Miller, D.P.N. v. Barnes & Thornburg, LLP, 49A02-1603-PL-498. In that case, the medical centers and Anthony Miller sued Barnes & Thornburg for alleged malpractice after the firm represented them in a lawsuit brought by podiatrist Thomas Vogel.

Vogel claimed Central Indiana Podiatry and the Foot & Ankle Surgery Center committed anti-kickback violations, various forms of fraud, money laundering, wage violations and other illegal conduct. The medical centers and Miller hired Barnes to represent them in the case, which ultimately settled, but when legal fees rose to $190,000, they sought a reduction and cap on fees.

Barnes provided a release agreement allowing the parties to pay only $145,000, but also included this provision: “The Miller Parties hereby release and forever discharge B&T, and all predecessor and successor firms, …from any and all claims, of any nature, known or unknown, which the Miller Parties now have, have had, or may later claim to have arising from or related to any aspect of B&T’s representation… .”

Because of that clause, the Marion Superior Court granted summary judgment to the firm in the malpractice suit, a decision the Indiana Court of Appeals affirmed in October 2016 and again on rehearing in March. The grant of summary judgment prompted the introduction of Senate Bill 84, which would had made any attorney-client provision that prospectively released attorneys from malpractice liability “void and unenforceable.” However, the bill, authored by Sen. Liz Brown, R-Fort Wayne, did not make it out of House committee.

Though the Court of Appeals decision was unanimous, Judge Terry Crone expressed concern in a concurring opinion about attorneys’ ability to shield themselves from malpractice liability, expressing a sentiment similar to what was found in SB 84.

“(I)n my view, allowing lawyers to prospectively limit liability to clients for future acts of malpractice subverts the very nature of the attorney-client relationship,” Crone wrote in his October opinion. “Until and unless our supreme court abolishes this practice, Hoosiers seeking competent and diligent legal representation may be left to fend for themselves against lawyers who wish to avoid liability for future acts of malpractice.”

The Miller and the medical centers moved for the Supreme Court to grant transfer to the case in April, but all justices concurred on the denial of transfer last week.

The court denied transfer to nine other cases last week. The full list of transfer actions can be read here.


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